Volz v. State
Decision Date | 17 October 1985 |
Docket Number | No. 85-34,85-34 |
Citation | 707 P.2d 179 |
Parties | Scott C. VOLZ, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
Court | Wyoming Supreme Court |
Bert T. Ahlstrom, Jr., Cheyenne, for appellant.
A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John W. Renneisen, Senior Asst. Atty. Gen., and Sylvia Lee Hackl, Asst. Atty. Gen., (argued) for appellee.
Before THOMAS, C.J., and ROSE, ROONEY, BROWN and CARDINE, JJ.
Scott C. Volz pled guilty to a charge of aggravated homicide by vehicle under § 6-2-106(b), W.S.1977, 1984 Cum.Supp. 1 and was sentenced to not less than two nor more than five years in the Wyoming State Penitentiary.
We affirm.
The issue as stated by the appellant is:
"Whether the trial court abused its discretion in sentencing the defendant to the Wyoming State Penitentiary under the law and the facts of this case (a) by failing to consider probation; and/or (b) generally, by the sentence imposed."
On the evening of August 3, 1984, appellant, who was then nineteen, drove his automobile to a party at Vedauwoo, a public park west of Cheyenne, Wyoming. He drank four or five beers at the party. He then returned to Cheyenne, where, while driving his automobile, he struck an eighteen-year-old bicyclist from behind. The bicyclist died at the scene from injuries sustained in the accident. Appellant immediately reported the collision, and subsequently a blood sample taken from the appellant revealed a blood alcohol content of .13%. Appellant had been driving approximately 70 miles per hour through Cheyenne at the time of the accident and left skid marks over 350 feet in length from the point of impact. Appellant was charged with being under the influence of intoxicating liquor while driving a motor vehicle and causing the death of Brian Kembell, the charge being aggravated vehicular homicide contrary to § 6-2-106(b), W.S.1977, 1984 Cum.Supp., supra.
Appellant was arraigned and entered a plea of guilty to the charge. At the arraignment, the prosecuting attorney advised the court that originally a probationary period of seven to ten years was going to be recommended, but that had changed when appellant filed his motion under § 7-13-203, W.S.1977. 2 The court informed appellant that it was not bound by any particular sentence or any recommendations of the prosecuting attorney and directed that the victim's father should be given notice of the time and place of the sentencing hearing. A Motion for Sentencing Pursuant to Section 7-13-203, W.S.1977, supra, was filed and an "Investigation Summary" prepared and submitted to the court. At the sentencing hearing, defendant's attorney stated to the court:
The victim's father then asked to address the court and he stated:
Because once you take that intoxicant and once you get behind the wheel of that automobile, you are responsible for what happens.
The issue of whether probation was properly considered is implicitly involved in the case at bar since it is intertwined in the complex sentencing process. This court has held that the "imposition * * * of probation lies within the sound discretion of the district court, and we will not reverse the actions of the district court unless that discretion is abused." Gronski v. State, Wyo., 700 P.2d 777, 778 (1985); Minchew v. State, Wyo., 685 P.2d 30, 33 (1984).
Appellant contends that the trial court's comments reflect that he mistakenly believed he had no choice but to sentence to confinement because of the legislative mandate in drunk-driving cases. To put this issue in proper perspective, it is necessary to reflect upon just what was said. The court stated:
This court first commented on the probation issue in Sanchez v. State, Wyo., 592 P.2d 1130 (1979). In that case we held:
In Sanchez, this court quoted sections of the A.B.A. Standards, Sentencing Alternatives and A.B.A. Standards, Probation which indicated one of the factors to consider in imposing the sentence was whether granting probation "would unduly depreciate the seriousness of the offense." 592 P.2d at 1138.
In the case at bar, the trial court did not set forth explicitly the reasons for denying probation. While this court in Daniel v. State, Wyo., 644 P.2d 172 (1982), strongly suggested that the trial court explicitly set forth the reasons for denial, there is not a requirement to do so. This court has recognized that other facts may be even more persuasive than a mere recitation that probation was considered. Kenney v. State, Wyo., 605 P.2d 811, 812 (1980).
This issue of the amount of consideration which must be given probation has been raised repeatedly. This court in Beaulieu v. State, Wyo., 608 P.2d 275 (1980), stated:
In the case at bar, the request for probation was brought to the court's attention several times. At the arraignment an oral sentencing agreement for probation was discussed and soon after a written motion for sentencing pursuant to § 7-13-203, W.S.1977, was filed. This was almost two months before the sentencing hearing. The court requested a presentence report, and Volz was asked at the sentencing hearing if he would like to call the court's attention to or explain anything further in the report. Additionally, at the sentencing hearing the appellant asked to be allowed to "go on" with his schooling and career, and his counsel made a plea for probation. These facts clearly show that the court thoroughly considered the request for probation even though the court did not explicitly say so.
The trial court did discuss the "legislative mandate" regarding drunk drivers who kill. Appellant contends that these statements reflect an approach to sentence based upon generalizations about types of offenses. In Sanchez v. State, supra, 592 P.2d at 1138, this practice of generalizing was condemned. It was stressed that the probation decision should be based on the facts and circumstances of the particular case. In the case at bar when the trial court's comments are considered along with the facts and circumstances, they do not show generalization about the type of offense. Rather, they simply point to...
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...is whether the imposition of a penitentiary sentence would serve to deter others from committing similar crimes. Volz v. State, 707 P.2d 179 (Wyo.1985). It is appropriate to impose a sentence of imprisonment if probation would unduly depreciate the seriousness of the charged offense. Volz, ......
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...within the legislatively mandated minimum and maximum terms in the absence of a demonstration of clear abuse of discretion. Volz v. State, Wyo., 707 P.2d 179 (1985); Kallas v. State, Wyo., 704 P.2d 693 (1985); Wright v. State, Wyo., 703 P.2d 1102 (1985); Munden v. State, Wyo., 698 P.2d 621 ......
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...limits set by statute. Wright v. State, 670 P.2d 1090, 1091 (Wyo.1983). Two years later, the standard was explained in Volz v. State, 707 P.2d 179, 184 (Wyo.1985): The standard this court follows on review of sentencing is well established. This court will not reverse a sentence which is wi......
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...is whether the imposition of a penitentiary sentence would serve to deter others from committing similar crimes. Volz v. State, 707 P.2d 179 (Wyo.1985). It is appropriate to impose a sentence of imprisonment if probation would unduly depreciate the seriousness of the charged offense. Volz, ......